Criticism by the anonymous ‘Prof Balthazar’ of Gauteng High Court (Pretoria) Judge Norman Davis’ recent judgment ordering the release of Jacob Zuma’s tax records is taken up by constitutional law expert Professor Pierre de Vos.

Writing on his Constitutionally Speaking blog, De Vos says while he agrees with some of it – including that the judge messed up the section 36 limitation clause analysis – the criticism goes further.

Balthazar’s argument – that it was a dangerous mistake to provide a ‘public interest’ exception to the general ban on the disclosure of confidential taxpayer records in cases where disclosure would reveal a substantial contravention of the law – is misguided, both in the conclusion it reaches and in the justification given, De Vos asserts.

He believes that transparency is a vitally important value worth promoting and protecting in a democracy.

‘While the need to protect the right to privacy will require the imposition of some limitations on the right of access to information, it is important to strike the appropriate balance between these competing rights,’ he says.

De Vos says he accepts the argument – advanced by SARS – that the protection of taxpayer confidentiality enhances tax compliance is a valid one.

‘But, perhaps because I am a human rights lawyer, I do not believe that enhanced taxpayer compliance justifies an absolute prohibition on the disclosure of taxpayer information. This is because such a prohibition strikes the wrong balance by imposing a radical limitation on the right of access to information. This is not reasonably justifiable, unless you value tax compliance above anything else.’

How can we reconcile the problem?

De Vos says what is required is to provide the kind of narrow exemption to the protection of taxpayer confidentiality adopted by the High Court.

‘This exemption would only permit the disclosure of confidential taxpayer information in the most exceptional circumstances, as it would only allow disclosure if the tax records would reveal a substantial contravention of the law and the public interest in the disclosure of the record clearly outweighed the harm caused to the taxpayer or SARS. The public interest requirement would protect the confidentiality of the overwhelming number of those taxpayers who contravened the law. While the rule might expose a small number of people who wield enormous power in government or business, it would seldom be in the public interest to disclose the confidential taxpayer information of ordinary private citizens.’

De Vos says Balthazar’s claim that the exemption could be abused by unscrupulous people ‘is therefore dubious at best’.

Full analysis on the Constitutionally Speaking blog